Archive for the ‘Illegal Immigration’ Category

It seems like a long time since we’ve had a positive change in immigration policy to report. You may have heard by now about “Deferred Action” – a new type of immigration benefit. It’s one that could be life-changing for many, many people.

The title means that the Department of Homeland Security (under which the Citizenship and Immigration Service operates) will put off deportation of some undocumented immigrants who arrived in the United States as children. This has long been touted by immigration proponents as the only sensible and humane thing to do for young adults who had no control over the circumstances that led to their presence in the US. The benefits are similar in some aspects to the DREAM Act, which failed to pass the Senate in late 2010.

This is not an amnesty program, and does not provide a Green Card, Citizenship, or even lawful status. It does provide a two-year EAD (Employment Authorization Document), which allows an indivdual to then apply for a Social Security number. There are several requirements that must be met for an application to be approved. The applicant must be at least 15 years old, but less than 31 as of June 15, 2012. He/she must have entered the US before their 16th birthday. They must have resided continuously in the US since June 15, 2007, although in some cases short trips abroad may be okay. They must be physically present in the US when they file, and when the policy was announced on June 15.

An applicant cannot have been convicted of a felony, and even some misdemeanors may be a deal-breaker. Also, the applicant must be 1] in school; 2] graduated from high school; 3] obtained a GED; or 4] be an honorably discharged veteran. The application for Deferred Action must include documentation that the above requirements have been met. It’s filed with CIS forms I-812D, I-765, and I-765WS. The filing fee is $465.

Homeland Security has stated that information about the applicant and the applicant’s family will not be routinely shared with ICE (Immigration and Customs Enforcement) for purposes of removal (deportation). So although the risk involved is small, it must be carefully considered.

This is an amazing opportunity for hundreds of thousands of young people, so spread the word and call a lawyer! Consulting a reputable immigration attorney will allow you to further understand what your risks might be, whether you meet the requirements, and how to document the requirements. There is currently no deadline for this program, but in all cases you must file before you turn 31.

“Happy Holidays from the House of Representatives. Please leave the tax credit for your children at the door.”

While we are busy buying our last stocking stuffers and planning our holiday feast, the House is planning to move four million U.S. children closer to poverty.

The payroll tax package, likely to pass the House this week, includes a provision prohibiting immigrant taxpayers from receiving a refundableChild Tax Credit. The Child Tax Credit’s purpose is to keep children out of poverty. It is one of the most effective ways to alleviate the tax burden imposed on low-income workers raising families, helping put food on the table.

The proposed provision denies taxpayers who file their taxes using an Individual Taxpayer Identification Number (ITIN) the ability to claim the Additional Child Tax Credit for their U.S. Citizen children. Undocumented immigrants are required to pay taxes and do so using an ITIN. According to Immigration Impact, this provision will affect approximately 2 million families and up to 4 million U.S. citizen children.

Despite paying taxes, undocumented immigrants are not eligible for the vast majority of benefits their tax dollars support. In 2010, ITIN tax filers contributed an estimated 9.2 billion dollars in payroll taxes. In other words, 10 times the amount that would be saved by eliminating the child tax credit away from the U.S. children of ITIN tax filers.

We constantly hear from the anti-immigration lobby that undocumented immigrants don’t pay taxes. Although that is not factually true, it’s going to become a self-fulfilling prophecy if we allow policies like this to be signed into law. When approximately 47% of the ‘legal’ U.S. population doesn’t pay Federal Income taxes, do we really need to punish those that do?

Immigration remains an issue in the forefront of U.S. political and social dialogue. Many Americans assume that the primary problem is with undocumented migrants, but the fact is that our immigration laws as they relate to legal employment and family immigration need a complete overhaul.

That is still not within sight, unfortunately.

Part of this is because the issue has become so emotional, with legal and illegalimmigration issues desperately entangled, that it puts politicians on thin ice with their constituents regardless of their position on the subject. However, there have been some interesting ‘piece-meal’ bills and policy memos that have had some impact this year.

One of its sponsors (Chaffetz) stated “I am committed to fixing legal immigration. By removing per country limits, American companies will be able to access the best talent. This legislation is pro-growth, pro-jobs, and pro-family. I encourage my colleagues in the House to pass this bipartisan legislation.”

The current system, where no country may be allotted more than 7 percent of employment or family visas, has long been criticized as unfair to larger, or more highly-represented countries such as India, China, Mexico and the Philippines. The proposed bill would eliminate the limit for employment-based visas and raise it to 15 percent for family visas.

With some high-skilled workers from India and China waiting nearly a decade for a Green Card, this is a great start. Not only will it have a significant and positive impact on thousands of individuals’ lives, but many experts think it would create a boost to our economy. More visas means more workers, with more families paying US taxes and spending money at US businesses.

Unfortunately, when sent to the Senate, Senator Charles Grassley (R) put the bill on ‘hold’. He said the bill “does nothing to better protect Americans.”

When one in four U.S. companies have a foreign co-founder, does this position really make sense if job creation is a goal?

Neufeld Memo

Although it took effect in 2010, this year theNeufield Memocontinued to change the way H-1B applications are prepared for employee-contractors.

Employers who outsource their workers must continue to provide substantial evidence of the contractual agreements between their company and their vendor, and between the vendor and the end client. In most cases, the end client must refer to the worker by name, and state the length of the contract as being the same as the I-129 requested validity dates.

Needless to say (although we’ll say it anyway) it is very difficult for an employer to get that kind of contract until the position is filled, and it’s difficult to get the position filled without presenting the contract to the USCIS. This vicious cycle keeps – or delays – U.S. employers from filling jobs and optimizing their business practices.

This ‘disconnect’ between government policies and common business practices does nothing to help our economy and seems, in fact, to be quite a hindrance to its recovery.

Alabama’s HB 56

This year Alabama passed a law making it a Class C Felony for undocumented aliens to transact business with state agencies. As a result, at least one utility company in Alabama posted a sign informing its customers that this prohibited them from providing water service to undocumented immigrants. Since Class C felonies are punishable by up to ten years in prison, this meant an undocumented alien could be imprisoned for a decade for attempting to use water in Alabama.

Also, based on how broadly the State defines “business transactions,” it could be that any transaction, including paying State taxes, could result in imprisonment.

Alabama is one of several states that have passed their own stringent immigration laws. The Department of Justice is currently challenging state immigration laws in Utah, Alabama, Arizona and South Carolina. In addition, they are reviewing immigration laws recently passed in Indiana and Georgia.

As more and more states continue to legislate on federal immigration laws, the conflict between our federal and state governments will be interesting to watch in 2012.

DREAM Act

Late last December, the DREAM Act (the Development, Relief and Education for Alien Minors Act) bill did NOT receive enough support to pass, but it continues as a source of debate on the overall immigration issue in the U.S. To be eligible for the act, undocumented students must have entered the country when they were 15 or younger and graduated high school or obtained a GED. To receive a green card, the bill required them to complete two years in the military or two years of college — plus a 10-year waiting period. Only six years later would they be eligible to apply for citizenship.

In response to this failing at the federal level, some states are again taking immigration law into their own hands. Recently, Gov. Jerry Brown signed The California Dream Act, which will become effective January 2013, into law. The law will make available state-funded financial aid to undocumented immigrant students in California. Funds include state Board of Governors fee waivers, student aid programs administered by a college or university, state aid Cal Grants program for state universities, community colleges, and qualifying independent and career colleges or technical schools in California.

The other half of the California Dream Act was signed into law by Brown in July and allows undocumented immigrant students to receive privately funded scholarships administered at public universities and community colleges.

The California Dream Act differs somewhat from the proposed federal bill, which would have created a path to citizenship for immigrants who entered the United States illegally as children under the age of 16, had lived in the United States for at least five years, obtained a high school or General Education Development diploma, and demonstrated “good moral character,” according to a White House fact sheet.

The DREAM Act has had, at times, support from both political parties. Unfortunately, most politicians today do not want to vote for any immigration bill for political reasons. If you’ve read the comments after any article written on the issue, you would understand why.

Immigration is currently a highly toxic and combustible issue.

As it relates to the DREAM Act, however, people should ask themselves some very fundamental questions: Is it right to deport someone who 1) was brought to the U.S. at a very young age through no choice of their own; 2) has lived in the U.S. their entire life, and knows no other country as home; and 3) is trying desperately to become a productive member of our society?

What Lies Ahead?

Immigration will continue to be a large part of the American consciousness in 2012. Whether through pressure from the “Border States”, economists, U.S. businesses, or farmers, Congress will be forced to make decisions about legal AND illegal immigration.

We should not forget that our legal immigration system, which is a vital part of the fabric of American history and culture, can be addressed separately from illegal immigration. The latter needs serious, reasonable discourse regarding the role we Americans want to play in this modern world – and how we want to approach the 11 million undocumented migrants in the US, and the continued flow across our borders.

But legal immigration needs smart reform NOW, whether comprehensive or ‘piece-meal’. It would spur innovation, bolster the economy, create jobs, and provide people with a better life.

If you asked me what I think people will take away from the topic of “Immigration 2011”, I would have to say the overriding issue is simply emotion.

Strong emotion.

Strongly worded emotion.

Have you ever seen the Comments section after an article about U.S. immigration?

It is an unabated flow of vitriolic lava!

We’ve learned over the past many years that the anonymity of the internet allows for speech that would not be given – or tolerated – in a personal conversation. But Americans seem to want validation of their view that illegal immigrants are ruining our country.

Of course, this sentiment is not new.

With every major wave of immigration in our country’s history, we have experienced (or exhibited) a similar reaction. In an article by Kenneth C. Davis (July 3, 2007) he reminds us:

“A PROMINENT American once said, about immigrants, “Few of their children in the country learn English… The signs in our streets have inscriptions in both languages … Unless the stream of their importation could be turned they will soon so outnumber us that all the advantages we have will not be able to preserve our language, and even our government will become precarious.”

This sentiment did not emerge from the rancorous debate over the immigration bill defeated last week in the Senate. It was not the lament of some guest of Lou Dobbs or a Republican candidate intent on wooing bedrock conservative votes. Guess again.

Voicing this grievance was Benjamin Franklin. And the language so vexing to him was the German spoken by new arrivals to Pennsylvania in the 1750s, a wave of immigrants whom Franklin viewed as the “most stupid of their nation.”

One of our earlier immigration laws (1790) reserved naturalization to “free white persons” who had lived in the country for two years. Where would we be now if that law had not been changed?

Most of the negative comments I read or hear are based on the notion that undocumented aliens are, simply put, criminals.

Does this remind you of anything?

Perhaps Slavery? Prohibition? Women’s Suffrage? Civil Rights?

Sometimes laws are wrong, or at the very least, not enforceable, so throughout our history, we have broken them. To make change, people have sacrificed, suffered, and even died. They may have been called criminals at the time, but in retrospect we have seen them as people who simply stood up for what was right. We’ve called them courageous activists, and even icons of American culture and politics.

“We have to uphold our laws”, anti-immigrationists cry out in anguish.

I wonder if they have ever fudged on their taxes, driven over the speed limit, smoked marijuana, or tasted alcohol before the age of 21.

“Not the same thing”, they say.

They’re right.

They broke a law to make things more convenient, comfortable, or enjoyable for themselves. Desperate people from other countries, who have no lawful means by which to immigrate, break the law to feed their children and provide some measure of hope for their future.

Definitely, not the same thing!

I’ve also heard many, many people say things such as “why don’t they just file their papers, pay the fine, and get legal”??!

This is a clear example of the general public’s lack of knowledge about U.S. immigration law. In a nutshell, there is no way for them to get legal. This would be called amnesty, and there is currently no program for that.

Basically, there are only a few ways to immigrate: through family, through employment, or as an asylee/refugee. The process has several steps, each with different hurdles. But a person who has entered, lived, or worked in the U.S. without proper authorization is usually not eligible for to obtain a Green Card under most circumstances.

Another widely-misheld belief is the ‘Anchor Baby’ situation. This is the erroneous belief that if an alien has a baby in the US, then they’re allowed to remain in the US legally.

Not so.

A person born in the US is a US citizen, but the immigration benefits to the parents are extremely limited. Under current immigration laws, parents who enter the U.S. illegally cannot legally benefit from having a baby on U.S. soil.

Deport them all, you say?

You may not realize what that suggestion means. Immigration and Customs Enforcement deputy director Kumar Kibble estimates that the cost to deport one person is $12,500. That means it would cost $137 billion to deport all illegal immigrants. This is simply not logistically possible or financially feasible.

So maybe we as a society could agree that undocumented immigrants are not exactly criminals, and that they have a great and desperate need to better their lives.

We know that the U.S. does not have a workable/enforceable framework for lawful immigration, and that we cannot afford to deport 11 million people. Our immigration system needs an overhaul.

We need no less than complete immigration reform, but our political machine cannot deal with this until voting Americans make room for a reasoned, practical discussion on the topic. We as a nation have so many other things to work on, other things that need insightful consideration.

Can we start by agreeing that illegal immigration is not the root of all our problems?

An Alabama law makes it a Class C Felony for undocumented aliens to transact business with state agencies. Alabama law HB 56 states the following:

An alien not lawfully present in the United States shall not enter into or attempt to enter into a business transaction with the state or a political subdivision of the state and no person shall enter into a business transaction or attempt to enter into a business transaction on behalf of an alien not lawfully present in the United States. [...]

A violation of this section is a Class C felony.

As a result, at least one utility company in Alabama posted a sign informing its customers that this section of Alabama’s anti-immigrant law prohibits them from providing water service to undocumented immigrants.

Class C felonies are punishable by up to ten years in prison. Thus, undocumented aliens can be imprisoned for a decade for attempting to use water in Alabama.

We think it is simply INHUMANE to deny water to anybody in this country – and arguably a violation of international human rights.

Also, based on how broadly the State defines “business transactions,” it could be that any transaction, including paying State taxes, could result in imprisonment. As this article correctly points out:

“….because the law defines unlawful “business transactions” very broadly to include “any transaction between a person and the state or a political subdivision of the state,” the mere act of paying income taxes might qualify. Thus, if an undocumented immigrant pays their taxes, they will be guilty of a felony, but if they don’t they will also be guilty of a felony.”

As one interested reader noted, a criminal is a criminal. Does Alabama want to deny water to all of them? Will they apply their harsh laws to murderers, thieves, and sexual predators? After all, if they are trying to chase away “undesirables”, wouldn’t it make more sense to start with those who are truly a menace to society?

Illegal immigration has been a hot-button issue in recent years. There is no question that border security needs to improve. But we need to revise our outdated immigration laws to allow more avenues for skilled and unskilled immigrant workers to work and reside in the United States.

The problem is the law, not the people!

This needs to be accomplished in a way that does not impact our basic humanity towards people. There are ways to tackle illegal immigration without denying water to a group of people or making it a felony to pay taxes. When trying to enforce immigration laws, let’s not lose our compassion as people, and what makes the United States special.

A few weeks ago, we posted anarticle on our Facebook page that said Senators Chuck Schumer and Lindsay Graham are testing ‘political will’ on a possible push for comprehensive immigration reform. Of course, we were immediately skeptical. If immigration reform didn’t happen when Democrats had a supermajority in Congress, can it really happen during an election cycle over the next two years?

Summing up the argument on both sides of the debate, Ray Suarez writes the following in anarticle in the Huffington Post:

The symbolic argument is strong and holds tremendous appeal for millions of Americans. It goes something like, “What part of ‘illegal’ don’t you understand?” People who did not follow the law, gain proper documents, and enter the American job market with the permission of the immigration authorities, goes the argument, should get no consideration at all from the system. Those people are right. The eleven million or so illegal residents in the country have no legal claim to long term legal residence in the United States.

But hold on a minute… the other side quickly pipes in, “What part of collapsing industries don’t you understand?” Immigrant labor is the pillar upon which many industries leans. Immigrant labor creates profits that spin out into real estate markets, department stores, auto dealerships, and keep the country’s food the cheapest in the developed world. In the near term, it’s interesting to speculate on whether sending the 11 million home would reduce the unemployment rate among native-born citizens, or explode it. The effects would no longer be confined to the Northeast, Border Southwest and the West Coast. Wait until you see the Census figures from all kinds of places that never thought of themselves as Latino kind of places.

It would be in the best interests of both political parties, and our country, to put differences aside and pass a fair immigration reform bill that balances enforcement with our country’s immigration needs. But in an election cycle, political will is likely to be absent on this issue, and as Mr. Suarez correctly points out – it’s complicated.

My thoughts

1. We should not allow illegal immigration. We do need to do something about the illegal immigrants who are already here. Deporting all of them is not the right answer! We need smart and fair Comprehensive Immigration Reform.

2. Our ‘means and programs’ that allow for legal immigration are outdated and terrible.

Here are a few examples of why the current immigration system doesn’t work:

If a U.S. company wants to sponsor a foreign professional worker for permanent residency (“green card”), the process could take between 7-15 years. In today’s global economy, what professional worker is going to wait that long when countries such as Chile, India, China, Russia and others are providing great incentives for people to come and work there? How will U.S. companies compete in the long-term with companies overseas who are able to attract the best talent?

The U.S. has one of the best education systems in the world. But when a foreign student comes to the U.S. and earns his/her Bachelor’s, Master’s or PhD, there is no easy mechanism for them to stay here. Most want to remain in the U.S., work and contribute to our country, but many are leaving because our immigration system doesn’t work out for them. Why would the U.S. educate these people and then allow them to use their skills elsewhere?

Until very recently, it would take a U.S. permanent resident between 4-6 years to sponsor his/her spouse for permanent residency. Given that being a U.S. permanent resident or “green card” holder is one step below U.S. citizenship, why should he/she be separated from their spouse for that long? Similarly, why should it take over 5 years for a U.S. citizen to sponsor his/her over 21 children?

Why isn’t India included in the E-2 investor program? Even business investors from Pakistan and Bangladesh can invest money in the U.S., create a business and jobs and get an E-2 investor visa. However, investors from India, a country that is a friend of the United States and has one of the most booming economies in the world, cannot.

Why isn’t there a lawful program that allows companies that need unskilled labor to obtain it from outside the U.S. if they cannot find adequate U.S. workers to do the job?

What can the U.S. do to address the illegal immigration problem?

We could start by doing something about the illegal immigrants who are here, as well as completely reform our legal immigration system to keep up with today’s global economy.

These are important issues that should be addressed separately, however. Continuously linking them together will hamper our efforts to reform any of them.

Continuing the Immigration Dialogue

We recently hosted a Webinar on the current state of immigration and how a change like the SKIL Bill could be a welcome change.

A few weeks ago, I had the opportunity to meet with a group of inspirational immigrant students who made a stop in North Carolina on their 1,500 mile trip from Miami, FL to Washington, D.C. by foot as part of the “Trail of Dreams” initiative to demand just and smart immigration reform. The event was sponsored by UnitingNC (www.unitingnc.org), an organization with a mission to foster rational dialogue between immigrants and others in the community.

North Carolina, like other southern states, has seen a significant increase in deportations, workplace raids, and barriers to higher education for immigrant students. Furthermore, Section 287(g) of the Immigration and Nationality Act, which authorizes the Federal Government to enter into agreements with state and local law enforcement agencies to perform immigration law enforcement functions, has created fear amongst aliens who lack a valid immigration status. This often causes illegal aliens to fail to report crimes to local law enforcement for fear of deportation.

These students spoke openly and candidly to me, public safety representatives and others interested community members about the challenges that these students and the 12 million undocumented aliens in the United States face each day and the hope that they have for the future. These students, some of whom are undocumented, are no different than any of us. They are good, hard-working, and kind people. The only difference is a status based on law. In the history of our great country, there have been bad laws related to women’s voting rights and segregation, to name a few, and those laws have been changed. Gaby, one of the students, pointed out that we need to do the same thing with our immigration laws.

During their visit they showed an inspirational video that I feel is certainly worth sharing:

On Sunday, thousands of diverse groups from across the nation marched on the National Mall in Washington D.C., peacefully, calling for immigration reform.

During the past few weeks, various ethnic and advocacy groups across the U.S. have promoted fundraising efforts to help people get to Washington, D.C., for the immigration reform rally.

A similar call for action happened right here in North Carolina, where the state’s Spanish-language media network, Que Pasa, called for the public’s support through their radio airwaves to sponsor additional buses, food and water for community members wishing to take the ride up to D.C. for Sunday’s march.

According to the U.S. Census Bureau, the area known as the “research triangle” is the fastest growing metropolitan area in the country, with a growth rate of 4.3 in 2008. And, part of the growth is due to immigrants choosing this area to settle down: almost 35 percent of immigrants in North Carolina came to the United States after the year 2000.

Ethnic media outlets, like Que Pasa, have been keeping a watchful eye on the changes in North Carolina’s immigration issues, which have become an important topic for the Hispanic community in light of the state’s clamp down on undocumented immigrants.

We recently built a partnership with the Spanish-language news network to provide immigration education and information to the state’s Hispanic community, so when I received a call from Que Pasa’s account executive, Josie Aronson, requesting Bashyam Spiro’s pledge of support for Sunday’s march, I knew that we would want to contribute our own “granito de sal” (grain of salt). Our managing partner, Murali Bashaym immediately agreed to pledge to the cause.

The media company had personally sponsored 6 buses. But with the support of local businesses, like us, and individuals in the community, they were able to add 6 additional buses to their caravan to the nation’s Capitol in just 24 hours!

Our firm was unable to attend the historical event at Washington’s National Mall, but as an immigration law firm we know that the topic of immigration is widely misunderstood in America, which causes unnecessary conflict where none should exist.

I worked as immigration caseworker for a U.S. Congressman several years ago and have since had an interest the immigration system and learned just how much it is in need of a “face lift.” While I did not go through the immigration system, I grew up in Puerto Rico and my grandparents came to the U.S. from Puerto Rico, Italy and the U.K.

Our managing partner, Murali Bashyam, has been an immigration lawyer for over 14 years, and represents many immigrants in North Carolina and across the United States. He too is an immigrant. His parents are from India and he was born in Canada. He is passionate about the topic of immigration for many reasons, one of which has to do with the wonderful people we meet through our work.

That’s why we are committed to supporting events like yesterday’s march, as well as, initiating conversations through the media and within the community that will hopefully result in mutual understanding among immigrants, U.S. citizens and U.S. permanent residents.

In a day and age where selfless philanthropy is rare, I am moved by my employer, Bashyam Spiro LLP – Immigration Law Group, for moving so quickly to support the Haiti earthquake relief efforts. Soon after the disaster in Haiti, we hit the ground running to respond to this humanitarian crisis by providing important guidance on obtaining Temporary Protected Status for Haitians through our Immigration Minuteweb video segment, we also shared this information via our e-newsletter and our colleague, Pam Prather, led the charge in making hygiene kits for the United Methodist Committee On Relief (UMCOR).

Today’s technology has greatly changed the way people give in a crisis. Through mediums like television, mobile phones and the Internet millions have been raised for Haiti, in only a matter of seconds, by texting and tweeting, on social networking sites and by way of personal Web pages.

I know of a number of other law firms and businesses who have also pledged their support to this worthy cause and I salute them. When faced with a disaster of this magnitude, every little bit-large or small-counts.

I sell this type of social action year-round by explaining what volunteering can do for the soul beyond what it can do for society. In a world that can sometimes seem so shallow this kind of showing of philanthropy puts everything into perspective.

As a long time community volunteer and advocate, I am proud to be a part of a group of colleagues who share my passion for helping others.

Our involvement doesn’t stop in Haiti, several years ago the firm began to help with the significant influx of Montagnards from Vietnam, by working with The Montagnard Human Rights Organization, a non-profit that provides immigration services to refugees in North Carolina. They have since expanded to serving refugees from many different nations. We’ve had a close and mutually beneficial relationship for several years now, with our attorneys and paralegals logging many pro bono hours on their behalf, as well as on behalf of many of their individual clients.

Members of the law firm have also formed a charity to help people in need around the world. Called Friends Unite, the organization’s 501(c)(3) charitable mission is to provide funding and support for the advancement of education, health services and other basic necessities, such as food, water and shelter, which are often compromised by poverty.

Our Managing Partner, Murali Bashyam serves on the Board of Directors of the Tammy Lynn Center for Developmental Disabilities. The Foundation operates the Tammy Lynn Center for Developmental Disabilities, which offers educational, residential and family support services to nearly 400 children and adults with special needs

We have created this Philanthropy link on our web site to keep you informed on what charities we are currently working with and support. If you wish to get involved with us in any of these charitable organizations, please let us know. We would love to have your help and support.